A Permissive Theory of Territorial Rights: Lea Ypi

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DOI: 10.1111/j.1468-0378.2011.00506.x
A Permissive Theory of Territorial Rights

Lea Ypi
Abstract: This article explores the justification of states’ territorial rights. It starts
by introducing three questions that all current theories of territorial rights
attempt to answer: how to justify the right to settle, the right to exclude, and the
right to settle and exclude with reference to a particular territory. It proposes a
‘permissive’ theory of territorial rights, arguing that the citizens of each state are
entitled to the particular territory they collectively occupy, if and only if they are
also politically committed to the establishment of a global political authority
realizing just reciprocal relations. The article is developed by introducing some
key features of the permissive theory and by explaining how such an account
addresses the questions of settlement, exclusion and particularity in ways that
significantly improve on existing rival accounts (most prominently: acquisition
theories, legitimacy-based theories and nationalist theories).
I.
Territory is contested. It is both contested from the inside, when secessionist

movements and autonomist groups threaten to disrupt the continuity of states’
boundaries and from the outside, when foreigners attempt to enter a country or
when other states and non-state actors raise claims to the territory’s natural
resources. Territory is also immensely important. Human beings are both socially
and spatially situated. The state’s ability to exercise territorial rights protects
individuals from external threats, creates opportunities for political participation
and shapes the geographical space in which citizens can lead their lives on the
basis of reliable institutional expectations. But what exactly justifies states’
territorial rights?
One way of addressing the issue is by interrogating the past: a people’s
historical entitlements to the land they presently occupy, the attachments they
have developed to each other, or the institutions they have jointly established.
One arresting concern with that account is being able to find a single state whose
citizens could claim a clean historical title; a single group of people whose
presence in a specific territory does not involve arbitrary dynastic arrangements,
acts of theft and usurpation of land, or war against particular groups of the
population.
Another way of proceeding is by considering the present. But suppose we can
create a perfectly just state by simply occupying others’ land. If we limit our
attention to the present performance of a state’s institutions we may not be able
to perceive what’s morally problematic about the way they come about.
European Journal of Philosophy 22:2 ISSN 0966-8373 pp. 288–312 © 2012 John Wiley & Sons Ltd
A Permissive Theory of Territorial Rights 289
Existing theories of territorial rights seem caught between those two conflict-
ing sides: either they deliver primarily past-oriented principles or they deliver
primarily present-oriented ones. An alternative way of proceeding might be to
elaborate a theory whose principles reflect sensitivity to the past while keeping
in mind the necessity of ongoing obligations. This is what I propose to explore
in this article and to do so by outlining what I shall call ‘a permissive theory of
territorial rights’.
This theory owes much to Kant’s account of political obligation and his
related analysis of cosmopolitanism. Both questions have been widely discussed
in other contexts. However, an attempt to consider their application to issues of
territorial rights is long overdue.1 This article explores some features of the
Kantian theory so as to reconstruct an alternative conception, to illustrate how
it differs from other views (most prominently: acquisition theories, nationalist
theories and legitimacy-based theories) and to emphasize its distinctive take on
issues of state justification and territorial adjudication. In the end, even readers
who might be only partially convinced by the account of territorial rights
developed here will hopefully agree that it represents a distinctive account worth
articulating.
The article proceeds as follows. Section II introduces permissive principles.
Section III defines territorial rights and introduces three questions that all current
theories of territorial rights appear to face: justifying the right to settle, justifying
the right to exclude and justifying the right to settle and to exclude with
reference to a particular territory. Section IV outlines the basic premises shared by
all these theories and outlines the key components of the permissive account.
Sections V, VI and VII each explain how the permissive theory of territorial rights
might help us address the question of settlement, the question of exclusion and
the question of particularity. Section VIII examines some objections and impli-
cations. Section IX concludes.
II.
To understand what is at the heart of the permissive theory of territorial

rights, it pays to start with an example. Take the case of a very conscientious
environmentalist NGO, whose members have decided to reduce their carbon
footprint by never flying. Suppose that at some point in the past they were
invited to explain their motives to a meeting in which environmentally-relevant
decisions regarding the reduction of travel by aeroplane would be taken.
Suppose further that at the time of the meeting the only way for them to reach
the location of the meeting was to fly. We can reflect on their action by adopting
a permissive principle. Such a principle explains how they were allowed to
suspend the prohibition of flying, for purposes of attending a meeting which
would promote the reduction of aeroplane travel. The principle permits us to
contingently suspend at T1 the principle to ‘not-F’, if the action of F-ing
contributes to establishing a state of affairs in which the principle of ‘not-F-ing’
© 2012 John Wiley & Sons Ltd.

290 Lea Ypi
is promoted. It may be possible however, that if the meeting succeeded in

reducing aeroplane travel, other ways of reaching certain locations became
available. Hence, at T2, the permissive principle ceased to apply.
A permissive principle is therefore both conditional and provisional. It is
conditional because it is invoked to reflect on an action otherwise incompatible
with a certain principle, subject to its contributing to a state of affairs through
which that principle is promoted. And it is provisional because the state of affairs
that permissive principles justify is not peremptory: it is only there for as long
as the end in the light of which the permission was initially introduced is not
fully realized.
This explanation takes us close to the Kantian definition of permissive laws.2
A permissive law, according to Kant, is ‘necessitation to an act such that one
cannot be necessitated to do it’ (8: 348; 321 fn). This apparently obscure definition
is meant to introduce a third kind of norm (in addition to commands and
prohibitions) required to exceptionally justify acts that we would ordinarily
consider incompatible with principles of right. The Kantian idea that an action
is incompatible with principles of right if it cannot coexist with everyone’s
freedom in accordance with universal law (6: 231; 387) has already been
discussed by other authors (e.g., most recently Ripstein 2009). What bears
emphasis is the relationship of this definition to permissive principles, i.e. their
employment to assess normatively relevant circumstances in which a course of
action incompatible with the idea of equal freedom is pursued.3 Much of my
analysis in this article will focus on what these normatively relevant circum-
stances might be. However, it is important to insist that permissive principles
justify states of affairs incompatible with the idea of ‘right’ only provisionally
and conditionally. That is, they justify actions incompatible with principles of
right, subject to a commitment to bring about states of affairs which realize the
idea of equal freedom, and for as long as principles of right are not in place. A
similar way of putting the question implies that it might be possible that, at T1,
an action is incompatible with principles of right but justified because it is the
only way through which those principles could be realized. This does not mean
that the same permission is also required at T2, where other avenues might be
available. Hence, permissive principles are principles of transition: they apply to
past actions but not necessarily to future ones. However, they are not morally
indifferent. An action that is morally indifferent does not require any special
principle to be brought about.
I shall say more about permissive principles and about the circumstances in
which they apply in the pages that follow. For now it is important to explain
how this apparently abstract definition of permissive principles relates to the
question of states’ territorial rights. These territorial rights have been established
during historical processes marked by political conflicts, population displace-
ments or dynastic arrangements (e.g. inheritance, exchange, transfer) which have
led to an entirely arbitrary partition of boundaries. Citizens’ control of specific
territories reflects unilateral decisions that, as we shall shortly see, can only be
provisionally and conditionally justified. Now, according to the theory devel-

oped here, states are only permitted to exercise territorial rights. Their citizens’
acquisition and exclusive control of such territories is provisional and conditional
upon their contribution to the full realization of the principle of right.
What exactly all this means will be clarified in greater detail shortly. But one
point deserves to be mentioned at the outset. Even though throughout the article
I refer to states’ obligation to create a political authority responsible for realizing
the universal principle of right, I say very little about how that proposal should
be empirically formulated. There are two reasons for this. The first is that the aim
of the article is more critical than constructive: it tries to illustrate what is wrong
with the existing way of conceptualizing territorial rights and points to the need
for answering that question from a new perspective. My theory of territorial
rights only explains why states have a reciprocal obligation to realize the
principle of right, not where that obligation exactly leads. Giving reasons for
why a certain kind of obligation should be acknowledged is a different (and
perhaps more modest) enterprise from specifying what form the institutions
reflecting that obligation ought to take.
But there is also another reason for resisting the temptation to be more specific
on what the universal realization of the principle of right concretely implies.
Developing views on how a certain kind of political institution should look is
not just a matter of moral principle; it is also a question of contingent political
judgement. To indulge ourselves in instructing citizens on what they should
concretely do to reform specific political institutions, not only defies their
democratic commonsense, it also threatens to issue the same kind of unilateral
requirements that makes the permissive theory of territorial rights required in
the first place. This, of course, does not imply that there are no moral constraints
whatsoever on what kind of political authority to realize the principle of right
the citizens of particular states can consistently establish, or that there is nothing
we can say to facilitate their political task. We might have good reasons to insist
for example that a similar global authority ought to make collective decisions
with regard to some areas and not others, following some procedures (e.g.,
democratic ones) and not others. We might also want to question the extent to
which a similar political authority ought to have coercive capacity or whether
states should be part of it only once they have reformed themselves in a certain
direction (e.g., republican one). However, providing a complete analysis of these
requirements is separate from the attempt to show why the creation of a similar
political authority is justified, and how that obligation lies at the heart of the
permissive theory of territorial rights.4
III.
What is the territorial state? The term ‘territory’ (in Latin territorium) derives
from the combination of the words terra, that is ‘land’, with ‘torium’, which
means ‘belonging to’. The word, therefore, indicates the possession of a geo-
graphical unit by an agent, be it an individual, family, company or any other

292 Lea Ypi
kind of artificial institution responsible for the use of the land (terra) and its
subsequent transformation (Taylor 1985: 95–140).5 The term ‘state’, on the other
hand, derives from the Latin status and in its first, Medieval connotation, it was
employed to denote both the ‘state’ or ‘personal standing’ of the rulers, and the
‘state’ or ‘conditions’ of the realm or commonwealth understood as an inde-
pendent political unit (Skinner 1989). When the word progressively shifted
meaning to the modern concept we are more familiar with, it indicated a form
of institutional organization, distinct from the rulers and the ruled as well as
responsible for the exercise of power in making and changing the laws of a
specific unit.
The term ‘territorial state’ is therefore linked to a collective’s exercise of
political power over a bounded geographical area through an artificial political
agent such as the state.6 States’ territorial rights can be understood with reference
to a threefold relationship between that bounded geographical area (the territory
of the state), the people controlling the land (i.e., citizens in their capacity as both
the rulers and ruled) and the institutions through which their control of the land
is exercised.7 In order to understand why states have territorial rights theorists
therefore attempt to answer three questions. First, what justifies citizens’ enti-
tlement to occupy a bounded area of geographical space? Call this the question
of settlement. Second, what justifies their right to permanently control the
territory? Call this the question of exclusion. And third, what explains their
ability to settle in and exclude others from a specific piece of territory? Call this
the question of particularity.
Different theories of territory have different ways of addressing these con-
cerns. In what follows I shall not examine in detail these theories but only refer
to them as a point of comparison with my own account, especially when it comes
to answering the three questions raised above. The starting premises are
intended to be ecumenical and appeal to normative assumptions that all existent
theories of territorial rights should find uncontroversial. These premises are then
further developed in ways that allow us to perceive the distinctive appeal of the
permissive theory.
IV.
In asking why states have territorial rights at all, it pays to start with a
thought experiment. Imagine the universe as initially unaffected by territorial
claims. Its resources are fully available for use to all human beings and
anyone’s claim to freely be in a particular piece of territory is as good as that
of anyone else. The rationale for the thought experiment is fairly clear. The
transition to a stage in which agents enjoy exclusive control rights over certain
areas and against certain people follows a stage in which everyone in the
universe is free to be in these areas. If we want to explain how X becomes a
function of Z we need to imagine a counterfactual situation in which X is not
a function of Z and then try to understand the change. Hence, to say that

something is available for use is significantly different from saying that it is

owned in common.8 In the first case the assumption is needed only as a
heuristic device, to understand how it is that something that everyone could
initially use becomes something that some agents exclusively control (Ypi 2011).
But what justifies the transition from a stage in which agents can freely inhabit
and use any area of the earth to one in which they settle and exclude others
according to specific jurisdictional boundaries?
Most theorists of territorial rights would endorse (or at least not reject) the
starting premises of this thought experiment. They would also agree on the
relevance of the question that follows from them. However, their understand-
ing of the conditions under which particular agents can claim territorial rights
over particular pieces of the earth is strikingly different. So, for example,
acquisition theorists consider territorial rights a derivate of agents’ (be them
individuals or collectives) property rights in the land.9 Nationalists emphasize
the material and symbolic value of the land for its inhabitants and the kind of
cultural and political attachment they develop to it (Miller forthcoming;
Meisels 2005; Moore 1998). Legitimacy-based theories insist on the institutional
opportunities that states make available to their own citizens, i.e. the estab-
lishment of a rightful political order, respect for basic rights, creating oppor-
tunities for political participation, and so on (Buchanan 2004; Stilz 2011, also
Waldron 1993). The permissive theory of territorial rights outlined below shares
some features with all of these theories. However, it differs with respect to two
crucial dimensions.
The first has to do with the unit of justification. In all current theories of
territorial rights justification is mainly constructed with reference to the claims
of agents within the state (or the nation): property owners in the case of the
acquisition account; members of particular ethnic groups or nationalities in the
case of nationalist accounts; citizens in the case of legitimacy-based accounts. In
asking why states have territorial rights, the relationship between the state and
these agents takes normative priority. Alternatively, in the permissive theory of
territorial rights, the unit of justification is universal both across space (it extends
to the citizens of other states and to stateless people) and across time (it extends
to future generations). I shall return to this in the following pages.
The second difference has to do with the nature of justification. In all the
theories mentioned above the justification of territorial rights is conclusive: once
the conditions under which states are entitled to particular territories have been
established, their claims to such territories are secure and binding. By contrast,
in the permissive theory outlined here, states’ claims to particular pieces of
territory are justified only conditionally and provisionally. States can continue to
exercise territorial rights if and only if their citizens are also politically commit-
ted to the establishment of a global authority realizing an all-inclusive principle
of right. This is where the permissive account of territorial rights follows Kant’s
justification of political obligation and his analysis of cosmopolitanism. Much
more needs to be said in order to understand first, why these collective
obligations are required and, second, how exactly they are supposed to work. As

294 Lea Ypi
already mentioned, this article engages mostly with the former question. To get
a clearer grasp of the problem, we need to start by closely examining how the
Kantian theory might help us understand the right to settle, the right to exclude
and the rights to settle and exclude with regard to a particular territory.
V.
Let us start with the right to settle. Settlement, according to the Oxford English
Dictionary, is the ‘placing of persons or things in a fixed or permanent position’.10
The definition already directs us to the idea that part of understanding why
states have territorial rights requires explaining why their citizens have a right
to settle, i.e. permanently stay in the territory defined by the boundaries of the
state. This in turn requires analysing, first, how their citizens have a right to
permanently stay in a certain area of geographical space and, second, how they
relate to each other in doing so. This amounts to clarifying both how an agent
A can establish a lasting relationship with external things (how he comes to
acquire them in the first place) and how another agent B can refrain from
claiming access to those things even if A is not physically present (how they can
be permanently maintained). Explaining permanent access therefore consists of
two elements: relationship of agents to external things (acquisition) and rela-
tionship of agents to other agents. Even if, as we shall shortly see, the former
element turns out to be normatively secondary, it is important in order to explain
agents’ special relation to physical things from a subjective perspective.
So let us begin with acquisition. The first acquisition of an external object, Kant
says, can only be the acquisition of the land (6: 261; 414). This is because land
constitutes the physical space upon which all other movable objects are placed.
As he argues following Aristotle, just as in a theoretical sense accidents cannot
exist apart from substance, so in a practical sense no one can have what is
movable on a piece of land permanently as his, unless one is assumed to be in
rightful possession of the land (6: 262; 414).
One might find this claim slightly puzzling. Do I need to possess the street on
which the car is parked in order to possess the car? Does understanding people’s
relationship to the land really need to precede our understanding of their
relationship to other external things? To see this point, think about the situation
of refugees. Refugees have been forced to leave their territory, and they have no
guaranteed place where to stay. Their position on Earth is not secure. This
renders them vulnerable to the decisions of others, and unable to set and pursue
ends in a reliable manner. Consider, for example, how a first-generation Pales-
tinian refugee who has been living for most of his life in a Syrian refugee camp
summarizes the start of his experience of displacement following 1948:
We wandered around different villages; we stayed one week here and

two weeks there until we were later deported to Bintjbail village in the
south of Lebanon. The Lebanese army picked Palestinians from the

streets and transferred them to Anjar. We were among the people who
were transferred to Bal’bek and we lived there for one year. In 1950 we
arrived in Syria by train. We hired a small house, but soon after our
landlord kicked us out because we were too large a family to rent his
property. (Chatty and Hundt 2005: 61)
Or consider how another Palestinian child, a third-generation refugee, summa-

rizes the deprivations suffered by life in a camp:
Football is my favourite game; we play in the street of our camp because

we do not have a playground to practice. People in the neighbouring
houses often shout at us and order us to play away from their houses.
We are always scared of being hurt by passing cars. (ibid.: 66)
Failing to have one’s place on Earth secured severely impairs individuals’ ability
to pursue their own ends. It deprives them of the possibility to form reliable life
plans and to access opportunities necessary to promote them. Hence it seems
important to address the issue of individuals’ relationship to the land, before
attempting to clarify their relationship to other external things.
Kant, as already anticipated, analyses this question by directing attention to
initial acquisition and to an agent’s subjective control of the land (occupation).
And he also clarifies that even if, on the one hand, the agent is free to acquire
land in order to pursue ends in it; on the other hand, by doing so, he necessarily
interferes with the ends of others. So, for example, a latecomer would be
constrained in his freedom to use previously available resources, finding that the
first occupier has now imposed on him an obligation to refrain from accessing
the land.
Many will find this claim puzzling. One objection might be that if, for
example, that first occupier acts so as to leave ‘enough and as good’ land and
resources available to latecomers, unilateral control need not imply curtailment
of the freedom of others. Notice however that from a Kantian perspective this
proviso-based objection is problematic. It relies on a presumption of abundance
which clashes with a different empirical scenario whereby the finite nature of
land and resources constrain their legitimate use. Even if we conceded that the
scarcity of geographical space does not affect all other living human beings,
nothing guarantees that future generations will not suffer the consequences of a
past unilateral distribution.
Some might reply here that the issue could be solved by appropriately
reducing the size of present holdings in proportion with the rise of other’s claims
(from members of either existing generations or future ones). But, as we shall see
below, the boundaries and content of one’s holdings, how much to reduce and
where, cannot be unilaterally (or even bilaterally) established. While unilateral
claims ground provisional permissions to continue enjoying the benefits of land
one contingently occupies, interference with the ends of others arises from the
fact that similar decisions are unilaterally made.11

296 Lea Ypi
Finally, given Kant’s emphasis on first occupancy as a subjective criterion for

legitimate settlement, one might worry about its implications for present-day
claims. Very few territorial boundaries have been established during settlement
processes which did not involve wrongdoing of any kind, be it through war of
conquest, dynastic inheritance, purchase or repression of particular groups of the
population. Kant’s remarks about first occupation might here ring obsolete,
raising concerns about the implications of the argument for descendents of
people who live in a particular area as a result of similar historical violations.
Does the permission to settle fail to apply to their case?
I shall return to this question at the end of the article when clarifying Kant’s
view of annexation. But the objection gives us an opportunity to suggest a
reading of Kant’s criterion of first occupancy which sees it as part response/part
concession to accounts that combined this criterion with labour theories of
acquisition, i.e., Locke’s theory. First occupancy, one should notice, places only
weak constraints; it works from a subjective perspective but may not be
reciprocally-binding. The condition is there to remind us that given common
ownership of a previously uninhabited piece of the Earth, unavoidable occupa-
tion, and control of the territory suffice for an agent to make use of a particular
piece of land. Nothing more (for example, adding value to the land) is required
from a Kantian perspective. But the argument does no more work than that, it
only explains retroactively how one can take control and make use of a certain,
previously uninhabited territory, not what entitles agents to remain in it once a
certain violation has occurred. In this sense, the criterion is of little guidance to
solve the problem of descendants of people whose presence in the territory
necessarily implies interaction with other groups. The latter question can be
answered not by looking at the criteria for settlement but to those for exclusion.
Even though an agent cannot avoid ‘occupying’ a particular area of geographical
space by virtue of being free to pursue his ends there, the exclusion of potential
others (who retain their initial equal right of use) obtains only a permissive
authorization. Allowing an agent to acquire land following the criteria specified,
amounts to suspending the prohibition of interfering with other’s ends only in
a provisional and conditional way. Why?
Recall that we defined settlement as the placing of persons and things in
a permanent position. We further argued that the justification of this act
depends upon an understanding of how the possibility to control things on a
permanent basis is possible. The criteria laid out above are sufficiently strong
to explain how agents can be subjectively placed in a relevant position to
acquire external things; e.g., how they might have a prima facie justifiable
claim to access objects (or land) in physical space. Given their freedom to be
in that area of the earth where nature had placed them, agents could not have
been morally prevented from occupying it. But notice that to take possession
of any portion of physical space in ways that are relevant to justify lasting
possession, implies imposing on other agents an obligation to continuously
refrain from interfering with their use of those natural objects. How can we
justify that unilaterally imposed obligation?

If one of the conditions justifying settlement is communal use of the earth,

prior occupation justifies the unilateral exclusion of others only provisionally
and conditionally. It is not enough to say that settlement in the territory
promotes a sufficiently important end of agents. Any lasting claim to the land
requires a justification of the ability to permanently control the use of its
resources and to force others to refrain from accessing a good (e.g., the land)
that the regime of communal use initially guaranteed. Therefore, to understand
the provisional and conditional nature of the permission to occupy a piece of
land, we need to turn to the second important aspect of possession: its rela-
tional aspect. That is to say, we need to consider not just how agents can
establish a lasting relationship with external things from a subjective perspec-
tive (how they come to acquire them in the first place) but how others can
rightfully acknowledge the obligation of refraining to access them. It thus turns
out that the issue of settlement cannot be sorted out without addressing the
issue of exclusion.
VI.
We emphasized that settlement through prior occupation is too weak a criterion

to explain how agents can conclusively enjoy rights to permanently be in the
land. One notable difficulty the strategy faces is that it only refers to the
relationship of agents with external things without justifying the imposition of
a unilateral obligation of abstention on other agents. Taking control of an
external object (in this case, a piece of land) in ways that are relevant to justify
settlement implies that the object is put in one agent’s service and rendered
unavailable to everyone else. If such agents are to control or derive benefits from
the land in a lasting way, the exclusion of outsiders from making analogous
claims seems like an essential requirement. But under what conditions can that
requirement be satisfied? Who is in a position to impose the relevant obligation
of abstention?
The answer here cannot be that this obligation-imposing authority lies with
the agent who presently enjoys the benefits of the land. For why should this
agent, simply because he is in a position to take control of external things, also
enjoy the right to impose obligations of abstention on others?
Kant thinks that it is possible to overcome the impasse that the issue of
original acquisition generates by making the authorization of unilateral posses-
sion conditional upon subjection to a collective political authority distributing
rights and obligations compatible with principles of equal freedom. Kant’s
analysis of political obligation and his justification of the state have already
been adequately explored by others. What has gone little noticed is the exten-
sion of the permissive principle at the heart of Kant’s account of political
obligation to the relationship between citizens of different states and the justi-
fication of their territorial claims. This cosmopolitan complement to Kant’s
domestic account of political obligation (in fact the interdependence of domestic

298 Lea Ypi
and cosmopolitan right) has been largely neglected in the literature (for one
exception see Flikschuh 2010). To understand its rationale, we need to return to
the issue of how political authority is essential for the application of permissive
principles to acts of unilateral acquisition.
Rather than being understood as permanently justified claims that warrant
agents’ consent to a civil condition (as in many acquisition theories of territory)
the right of individuals to settle is considered a merely ‘provisional’ allowance,
which permits agents to take control and make use of the land subject to their
endorsement of political obligations realizing the principle of right. Unilateral
acts of acquisition are authorized if they also entail a commitment to join a
political condition in which relationships between persons (hence, indirectly,
also their access to resources) are regulated by appealing to a public political
authority. This implies that it is only possible to rightfully have something
external as one’s own if, with the very act of acquiring external resources by
unilateral means, we also accept the necessity of a collectively established
political authority ruling in the name of all. In this way, the unilaterality of
initial acquisition and the arbitrary use of exclusionary force is mitigated by the
commitment to make our will consistent with others’ will through collective
rules of property arbitration and enforcement. The necessity of initial acquisition
is understood through a provisional allowance of the unilateral claim to use
previously available land. Yet, at the same time that claim triggers an obligation
to join a rightful political authority, where freedom in the use of external objects
is made consistent with that of all others. Political obligations are already
inscribed in agents’ enjoyment of benefits that occupancy de facto confers on
them. Others are being wronged regardless of the agent’s intentions, and that
wrong ought to be redressed, even if one fails to acknowledge it as such. As
Kant puts it, ‘the way to have something external as one’s own in the state of
nature [. . .] has in its favor the rightful presumption that it will be made into
rightful possession through being united with the will of all in a public
lawgiving’. In the absence of this presumption, a right to having anything
external as one’s own is not absolutely granted but holds only ‘comparatively’
as rightful possession (6: 257; 410). Permissive principles are governed by
collective political obligations.
We might be tempted to restrict the application of these claims to the
justification of individual possession, which one might think is finalized upon
subjection to a collective political authority such as the one embodied by the
state. Following a similar interpretation, the state’s ability to exercise territorial
rights would be justified in virtue of its capacity to make and enforce rules
turning the provisional holdings of its citizens into rightful property, consistently
with the principle of equal freedom. This is, for example, how legitimacy-based
accounts usually justify states’ ability to exercise territorial rights (Buchanan
2004: 233–88; Waldron 1993; Stilz 2011). But the position developed in this article
is different and more radical. The point of the argument about permissibility is
to emphasize that any unilateral act of settlement is always partial unless
coupled with an obligation to enter into universally inclusive political relations.

The objections raised above, apply both to individuals taken as such, and to
individuals considered as citizens of particular states. The unilaterality of
settlement remains (although in qualitatively different ways) in both cases. This
means that even the private possessions of individuals within a state are not
conclusively established in the absence of the commitment to universally inclu-
sive political relations.
All those who are brought together by nature and chance cannot avoid
affecting one another (i.e., interfering with each other’s freedom). Under these
circumstances, joining a rightful political authority is obligatory; indeed it is the
only condition under which permissive principles can authorize unilateral
settlement. States enjoy territorial rights because they impose a public system of
laws which establishes rightful conditions of co-existence between all those that
nature or chance has placed next to each other. Membership in this rightful
political authority is something that citizens inherit through shared political
participation. But the relational logic of the argument is such that it does not
cease to apply at this point. Since the Earth’s surface is not unlimited but closed,
Kant argues, the reciprocal influence upon each other’s freedom is simply carried
from one level to the next: states cannot avoid being next to each other. This is
also what explains the necessity of establishing relations of right between states:
citizens of different jurisdictions cannot avoid affecting each other in their use of
physical space.
To claim that the citizens of different states cannot avoid affecting each other
in the international sphere does not necessarily imply that they are in exactly the
same position as individuals in the state of nature (although Kant does make use
of the argument by ‘analogy’ at various points). What it means is that even the
possessions of individuals within the state are not conclusive unless this uni-
versal union realizing the principle of right has been established. Domestic,
international and cosmopolitan right, are interdependent rather than analogous.
Or, as Kant puts it: ‘if the principle of outer freedom limited by law is lacking
in any one of these three possible forms of rightful condition, the framework of
all the others is unavoidably undetermined and must finally collapse’ (6: 311;
455).12
It is worth noticing that the reasons for this collapse are already inscribed in
the prohibition that permissive principles allow us to suspend: the wrongness of
unilateral acquisition and the interference with others’ freedom. A unilateral will
can ‘justify an external acquisition only in so far as it is included in a will that
is united a priori (i.e. only through the union of the choice of all who can come
into practical relations with one another) and that commands absolutely’ (my
italics). External acquisition remains provisional even after individuals have
joined particular states, because the relational logic of the argument is of a
potential not of an actually existing kind; it does not apply merely to those who
are connected at present but also to those who can come into practical relations.
Unilaterality is not absolved when those who come in face-to-face contact with
each other establish a political union according to criteria that respect the equal
freedom of all. A similar union continues to make decisions that place under

300 Lea Ypi
specific obligations both those excluded in space (e.g., non-members of that

political association) but also those excluded in time (e.g., future generations).13
How exactly should we understand this obligation of the citizens of different
states to enter into rightful political relations to each other? And what does the
permissive theory of territorial rights have to say with regard to existing
conflicting claims on how to draw territorial boundaries? To answer these
questions we need to consider how the permissive theory of territorial rights
responds to the third problem raised at the beginning of this article: the
particularity question.
VII.
It may be worth tackling this question by comparing the permissive theory of

territorial rights with a class of rival, but sufficiently similar, views: legitimacy-
based accounts. As in the permissive theory, territorial rights are justified with
reference to how the will of citizens is involved in a decision-making authority
with coercive powers such as the state. In this group of theories the ability to
guarantee the rule of law; to protect basic human rights; and to provide sufficient
opportunities guaranteeing citizens’ democratic participation are all essential
criteria to understand why the state is justified to establish and maintain
jurisdiction over a piece of land. Moreover, legitimacy-based accounts are
sensitive not just to what opportunities citizens make available to each other
through the institutions of the state but also on how these institutions relate to
outsiders. Hence, to the list of ‘internal’ criteria, legitimacy-based accounts
usually add a set of supplementary, ‘external’ requirements. To mention but the
most relevant ones, a state is entitled to exercise territorial rights if it is not
implicated in human rights violations outside its borders; if its citizens have a
rightful claim to be in the specific territory defined by the boundaries of the
state, and if the state has not come to establish territorial rights through
usurpation of others’ land (Buchanan 2004; Stilz 2011).
But let us consider more carefully this last requirement. Its rationale is of
course clear: if we only focus on the conditions that a state must presently satisfy
in order to be able to claim territorial rights, we overlook the potential injustice
involved in the establishment of its jurisdictional authority over a land that may
have been acquired through foreign invasion. This question appears in turn
linked to the particularity issue mentioned above. To understand the kind of
wrongdoing involved in acts of occupation of foreign lands on the part of other,
perhaps internally just, states we must be able to explain why not just any given
territory but a particular piece of land falls under the jurisdiction of any given
state.
Yet, resolving this question reveals a tension at the heart of the legitimacy-
based justification of territorial rights. Least the reasoning be circular, usurpation
does not count as usurpation unless an independent reason has been given as to
why people are collectively entitled to be in a particular territory and not in

another. But this is also where the problem lies. If we are trying to explain what
justifies territorial rights, we cannot introduce criteria (such as the non-
usurpation one) that rely on territorial rights having already been justified. All
that the latter argument goes to show is how boundaries could be rightfully
protected and preserved once they have been established, not how they ought to
be drawn in the first instance.
How does the permissive theory of territorial rights help us address the
particular boundary problem? Recall our observations on what provisionally
justifies individual settlement, and recall the permissive principle through
which we framed initial acquisition. Earlier in the article we argued that agents
were provisionally permitted to take control over any given piece of land, if
they had been brought there by nature or chance, if they willed the use of the
land, and if they entered in a political union ruling in the name of all. To say
that these agents were prima facie permitted to acquire a piece of land is not
to say that they could lay conclusive claim to it. It is simply to emphasize that
if this is coupled with a commitment to join a universal rightful political
authority, we can reflect on their action by exceptionally suspending the pro-
hibition of not interfering with others’ ends. Individuals need somewhere to be,
and they also need some way of securing their existence on earth. Taking
control of land and establishing a particular jurisdiction in it could have been
one plausible, if unilateral, way of achieving this goal. But, as we saw above,
unilaterality is permitted only in virtue of what it purports to achieve: a
condition where jointly framed political institutions rightfully regulate the
claims of all.
What this argument suggests is that states are the kinds of institution where
a first approximation to the idea of a universal union of people mutually
constraining each other’s freedom has been reached (to some degree). The fact
that the union of individuals in states provides a first approximation to the
establishment of universal rightful conditions is extremely important. For, as we
shall shortly see, this introduces one relevant disanalogy regarding how we go
about, politically, trying to shift from a condition in which rights over specific
portions of territory are assigned in a permissive way to one in which they are
conclusively established. But before examining the implications of this point, let
us return to the particularity question. Why do states enjoy a permission to
exercise territorial rights in one specific area of geographical space rather than
another?
To answer this question we can draw on our analysis of settlement as
occupying a permanent place in the world. Groups of people are naturally
separated from others: one reason may be geographical features, for example
the fact that there is an ocean here, a river there, mountains between fields, and
so on. Initially only geographical features might explain what forces certain
individuals and not others to act in common within a given area. Of course as
their relationships improve other commonalities might develop: they might
start speaking the same language, they might share a set of practices through
which they regulate life together, and so on. Nationalists may be right that this

302 Lea Ypi
is how groups end up occupying specific areas of geographical space. Acqui-

sition theories may be right to say that it matters if these groups collectively
improve the territory and deserve to enjoy the benefits of their work. But
neither argument is enough to explain how a particular portion of territory
could be considered permanently theirs and how outsiders can be forced to
stay away. Other theories, for example legitimacy-based ones, might add that
only when groups of people are united in a political association similar to the
one we call ‘state’ the conditions for lasting possession are established. But
again, that is no more than a first step. Entering in state-based political rela-
tions only partially absolves members from the unilateral acquisition of com-
monly available areas of the Earth. For even if we grant that, upon entering
the civil condition, external possessions within a particular political associa-
tion are allocated with due consideration for the equal claims of fellow-
members, the unilaterality of their acts with regard to all other agents remains
unresolved.
The case of individuals constituted in states displays a similar unilaterality
with regard to external acquisition as that of individuals within the state. By
taking possession of a specific territory and enacting a public system of laws in
it, citizens both exercise their external right to appropriate previously available
land and prevent it from being available to anyone else. On the one hand, their
acquisition of particular territories is linked to their necessary occupation and
collective subjection to a system of laws; on the other hand it is incompatible
with the freedom of whoever else is outside and finds itself under a unilaterally
imposed obligation of abstention. The need for a system of rights assigning to
each agent what belongs to it, subject to reciprocally binding constraints is felt
in the case of citizens of different states as much as in the individual one. Before
that, any existing partition of the territory is only provisional and conditional
at best.
One might object to this argument by saying that there is a relevant disanal-
ogy between states’ exercise of territorial rights and that of individual property
rights in the state of nature. But the permissive theory need not deny that. Its
claims are not grounded on an argument ‘by analogy’, they are grounded on an
argument of interdependence. The principle that permits unilateral acquisition
lifts the prohibition of not-interfering with each other’s freedom only by impos-
ing an obligation to join a universal public political authority. Without this, any
system of exclusive control of external things (whether individual or collective)
cannot be considered conclusive.
Of course, had the usable space on earth been infinitely large, states could
exercise territorial jurisdiction wherever they wished without their citizens’
affecting each other’s claims. But the spatially determined and finite nature
of areas available on earth makes the problem of unilateral acquisition of
usable areas of the earth and the related infringement of other’s freedom one
of the most pernicious. Permissive principles allow us to consider acts of
initial acquisition provisionally justified but conditional upon the creation
of a rightful political authority. This obligation is not exhausted when

individual claims are subjected to a domestic general will. Permissive princi-

ples do not apply merely to individual holdings; they also apply to territorial
jurisdictions.
In the absence of political conditions under which external acquisition is
made consistent with the equal freedom of every potential inhabitant of the
Earth, the holdings of individuals, and the territorial rights of states through
which those holdings are protected, will remain merely provisional. Settlement
and exclusion are permitted only if they are followed by a duty to enter in
rightful political relations overcoming the unilaterality of first occupation. The
entrance into state-based political relations is only a partial, even if very
important, step towards the justification of lasting possession. Without the
further integration of that internal act of political constitution-formation with a
project to enter into universally inclusive political relations, the rights to both
property and territory exercised by citizens of particular states can hardly be
permanently justified.
Let us now consider more closely how the permissive theory of territorial
rights addresses the particularity question compared to other accounts. One
interesting feature is that we can afford to be ecumenical with regard to how
groups of people end up occupying specific geographical areas. Different theo-
ries of territorial rights will have different views on why exactly this particular
group of people, in this particular territory has succeeded in taking control and
establishing certain political institutions. Acquisition theories will argue that
individuals or collective property owners have made efficient use of its land and
resources. Nationalist theories will argue that a group sharing particular histori-
cal and cultural features has developed a material and symbolic relationship to
the land, involving both present and future generations. Legitimacy-based
theories will argue that this coincides with the area where the state has
successfully managed to enforce the rule of law. And so on. From the point
of view of the permissive theory of territorial rights, even if the citizens of
particular states have ended up occupying particular territories in either one of
the ways described by these accounts, the kind of claims they can be collectively
authorized to make over specific areas of geographical space are provisional and
conditional at best.
Thus, even if first occupation matters to establish provisional claims the
particularity problem cannot be solved with an inward-looking approach which
neglects how citizens of a particular state interact with others, both across space
and across time. The answer to the question of why states are entitled to one
particular area of geographical space cannot be conclusively provided; not until
a political authority realizing the universal principle of right is founded. Per-
missive principles may well end up endorsing the kind of boundaries that we
have. The conclusive justification of these boundaries is not necessarily con-
strained by what was done in the past for these boundaries to emerge in the
current form. What matters especially is how states now act politically to
overcome the unilaterality of that initial acquisition, not how territory was
initially subjected to their control.

304 Lea Ypi
VIII.
The implications of this view may appear slightly troubling. Does the permissive
theory of territorial rights imply that any well-meaning state can now currently
invade the territory of another (recalcitrant) state provided it forces it to enter
into a universal political association? Does it imply that the current territorial
claims of long-suffering nations or the demands of internally oppressed ethnic
groups are better ignored? Does it imply that we should pay no attention to the
present distribution of natural resources because any state can continue to enjoy
what it has?
Kant explicitly condemns any act of territorial annexation. But he does so in
ways that might appear to undermine the application of permissive principles to
territorial rights. So let me start answering these questions by putting at rest the
objection that denies a possible application of the permissive principle to issues
of territorial rights. In his famous passage condemning usurpation, Kant argues
that a state is ‘like a trunk, it has its own roots and to annex it to another state
is to do away with its existence as a moral person’ (8: 344; 318). One might infer
from this position that the territory of states is analogous to the body of an
individual, where the presumption of inviolability would be grounded on the
fact that states are equivalent to moral persons who do not come to acquire
territory but who simply ‘have it’.14 Since no external objects of choice would be
at stake, no unilaterality problem would arise. But Kant clearly indicates that
permissive principles do apply to territorial issues, indeed he introduces the very
definition of such principles in the context of illustrating the wrongness of
acquiring territory by means of inheritance, exchange, sale or donation (8: 347–8;
320–1). His argument is that even though the ‘status of possession’ (Besitzstand)
of a certain territory acquired by those means is incompatible with the principles
of right, his prohibition of such annexations only applies to the ‘way of
acquiring’ in the future and does not require us to remedy what was done in the
past. This, he argues, is because even though the ‘status of possession’ of a given
territory ‘does not have what is required in order to be called right’ this was ‘in
its time . . . taken to be legitimate according to the public opinion of each state
at the time’ (8: 347–8; 320–1).
This appeal to the ‘public opinion’ of the time is crucial to understand how
we are to deal with territorial claims that have emerged as a result of violations
of others’ claims, including cases in which the criterion of first occupation is too
abstract to understand current settlement. Descendents of settlers whose history
in the territory reflect past wrongdoings cannot avoid occupying the space that
they currently occupy. From a Kantian perspective they have claims to territory
because they have ended up where they are ‘by nature or chance’, as a result of
historical contingencies upon which they have no control.15 This does not imply
that their presence in the territory is compatible with principles of right, even
when those violations were not perceived as such at the time in which they
occurred. The establishment of collective territorial claims is unilateral, just like
the possession of land by the citizens’ of particular states is unilateral.

The partition of boundaries is therefore not beyond critique. Permissive

principles should be understood as transition principles; they can be retroac-
tively invoked to justify a unilateral past acquisition in the absence of rightful
conditions of reciprocal interaction.16 But even that past acquisition is only
justified conditionally, subject to the obligation of entering into universal con-
ditions of right.17 Once the mechanisms for a rightful distribution of territorial
claims are in place, the wrong of unilateral settlement ceases to be absolved in
light of its compatibility with the public opinion of the time. It requires states to
submit to the rules of a collective authority adjudicating the distribution of
territorial claims according to principles of right.
But what are we to make of cases where states refuse to acknowledge the
obligation to enter into rightful political relations with all other states? Kant
condemns annexation both when it is aimed at superseding historical wrongs
and at forcing universal collective rule. No unilateral action is justified in the
civil condition, neither that which attempts to restore justice where it is con-
sidered absent, nor that which attempts to force recalcitrant states to join a
rightful political association. Once some basis for the establishment of rightful
conditions has been constructed, we are not in the state of nature; our insti-
tutions, though imperfect, have prepared the conditions under which principles
of right can be fully realized. Some constraints on unilateral individual actions
have already been placed, at least as far as those sharing the same jurisdiction
are concerned.18 Hence, even though the citizens of any given state are only
provisionally entitled to the territory they currently occupy, this does not mean
that other states can claim it by means of another unilateral act. The obligation
to overcome the wrong of unilateral settlement falls on the citizens of states
where internal mechanisms of democratic decision-making are in place. But
someone might object: what if we are dealing not with states but with groups
of people which have failed to establish even these minimal institutional
foundations?
This is a very serious question. Kant raises it when assessing the attempts of
colonists to settle in particular areas contrary to the will of natives, and by
appealing to the backward nature of their social organization. It might be asked,
he argues, whether ‘when neither nature nor chance but just our own will brings
us into the neighborhood of a people that holds no prospect of a civil union with
it, we should not be authorized to found colonies, by force if need be, in order
to establish a civil union with them and bring these human beings (savages) into
a rightful condition’. The attempt of European powers to settle in territories
inhabited by the American Indians, the Hottentots or the inhabitants of New
Holland, and to justify these colonial enterprises through acquisition-theories of
territorial rights was all too familiar in his day.19 Kant’s answer is that ‘all these
supposedly good intentions cannot wash away the stain of injustice in the means
used for them’ (6: 353; 490). But the argument is not targeted merely at the
prohibition of violence, as such. It holds even when more subtle measures are
endorsed, for example when we ask whether we should not be authorized to
control the territory of these natives ‘by fraudulent purchase of their land’ and

306 Lea Ypi
‘by making use of our superiority without regard for their first possessions’
(6: 266; 417).
These remarks are not without contemporary resonance: how distant is the
situation Kant describes from one in which the soil and resources of these
less-civilized (now we would say ‘developing’) countries is purchased by a
dozen companies based in so-called democratic states? What difference does it
make if crowds of colonists reaching exotic shores have been replaced by teams
of lawyers and bankers flying in business class? And most importantly, how does
the permissive theory of territorial rights both compel countries to enter into
political relations with each other and justify their resistance when forced to
doing so?
To answer this question we need to consider what exactly the permissive
principle prescribes with regard to relations between groups whose territorial
rights have only provisionally been established. Since the earth is initially
commonly available for use, and since territorial rights are only provisionally
justified, outsiders cannot be denied a right to visit. To claim otherwise would
be to arm occupiers with a permanent right to exclude—something that, as we
have seen, is impossible to unilaterally establish. ‘Since possession of the land,
on which an inhabitant of the earth can live, can be thought of as possession of
a part of a determinate whole, and so as possession to which each of them
originally has a right, it follows that all nations stand originally in a community
of land’ (6: 352; 498). This however is not a rightful community of possession
(communio) and consequently of use of the land. For that, as we have seen, we
need a universally inclusive mechanism of political adjudication.
Now, the fact that occupation does not equip natives with a claim as strong
as the right to exclude well-meaning visitors, does not imply that these visitors
are granted a right to settle. Unilaterality presents a threat in both directions:
when displayed by natives we mitigate its consequences by granting foreigners
a right to visit; when displayed by foreigners we mitigate its consequences by
refusing them a right to settle. In both cases, Kant says, a special contract is
required to regulate their reciprocal relations; one which is arrived at without
exploiting the ignorance of the parties and which cannot, in any case, be
permanently established unless ‘it extends to the entire human race’ (6: 266;
418).
There is a final important point to mention when examining the application
of permissive principles to the issue of territorial rights. Even though, as we have
seen, the realms of domestic, international and cosmopolitan right are interde-
pendent and neither of them can be safeguarded without working for the
realization of the other, one relevant issue deserves attention. In the case of
individuals, permissive principles recognize the legitimacy of initial acquisition
only at the price of coercing them to join a rightful political condition. In the case
of states, as Kant’s reaction to colonialism (and, by extension, neo-colonialism)
has illustrated, dissenting states can be invited but not coerced to enter in rightful
political relations with other states. But how can the permissive theory of
territorial rights both compel states to join a rightful political association yet also

acknowledge the legitimacy of their resistance in doing so? How can subjection
to a reciprocally established political authority be both necessary and avoidable?
To say that outsiders cannot exercise force on dissenting states to induce them
to enter in rightful political relations with them, is not the same as saying that
no attempt should be made to that effect. Kant’s reasons for rejecting the
interventionist attitude have to do with the fact that, however primitive, an
association of individuals with some form of social organization and with a will
to subject to joint rule, is already a step beyond an anarchic society where
individuals act with no common aim (Ypi 2008; Flikschuh 2010). This is also the
crucial difference between individual appropriators in the state of nature, and
collective political agents attempting to enter in rightful political relations with
each other. The reasons for resisting the temptation to invade outsiders to
promote their political emancipation are similar to the ones for not endorsing an
internal right of rebellion: there is always a transition point where all public
authority is destroyed and the conditions upon which principles of right rest are
annihilated.20
It should be noted however that the right to exclude is here provisional and
conditional just like the territorial claims made by those groups are provisional
and conditional. The fact that foreigners have only a right to visit and not to
settle does not imply that natives have no obligation to join a universal political
association responsible for adjudicating territorial claims. The necessity of this
political association is not in question; the issue rather concerns the modalities
according to which it ought to come about. Kant does not retreat from a strong
demand for the construction of a similar authority to a weaker position explain-
ing how peoples’ whose territorial claims are only provisionally justified can
legitimately exclude outsiders. The right to visit applies only provisionally and
conditionally too. But the point of emphasizing the provisional and conditional
status of territorial rights is not to say that boundaries should be arbitrarily
dissolved or arbitrarily redrawn, or to justify the right of so-called legitimate
states to intervene in the territory of others. To maintain that, would be to engage
in the same kind of unilateral judgement that makes permissive principles
applicable in the first place.
It is legitimate to ask what kind of claims might be adjudicated by a global
political association similar to the one Kant advocates and what specific insti-
tutional form the enforcement its demands might take. Kant’s texts appear very
ambiguous on the first issue, limited as they are to emphasizing why a similar
authority is necessary from the point of view of right but not how it would
positively work. However, we can identify several areas in which such an
authority might intervene to resolve conflicting claims related to the territorial
dimension of political rule. One aspect might be controversies concerning the
drawing of boundaries and the rights of specific peoples to occupy a particular
piece of land, including disputes arising from secession (Brilmayer 1991; Bucha-
nan 1991). Another aspect might be control of the movement of people, the
distribution of the burdens of migration and potential grounds for excluding
outsiders once claims to territory have been conclusively established (Risse

308 Lea Ypi
2009). A third issue might be the distribution of natural resources related to the
use of territory by citizens of particular states (Beitz 1999; Pogge 1994; Wenar
2008). Finally an important area of intervention might be the resolution of
conflicts arising from claims to territory made by future generations, following
the foreseeable effects of, say, environmental change (Nine 2010). If citizens of
particular states were to make decisions on all these issues without seeking to
render their claims consistent with those of others, the imposition of their will
upon those affected by such decisions would be very difficult to justify. Only a
universal political association providing a forum for inclusive decision-making
to all citizens of the earth can avoid the constraints on freedom that a similar
unilateral way of proceeding inevitably generates.
The global character of a similar association (i.e., the need for it to give a say
to all the inhabitants of the earth) is also not in question. Yet Kant is somewhat
ambiguous on whether we should conceive of such authority as one with
coercive power over its members or as a free league of states (Ypi 2008). The
latter seems more compatible with his observation that existing states, notwith-
standing the provisional nature of their territorial claims, present us with a form
of association different from relations between individuals in the state of nature.
Yet the permissive theory of territorial rights does not provide an effortless
answer to how a similar global political authority is constructed in the first place
and the concrete institutional shape it takes. But what it does give us is a
standard on the basis of which to frame our political judgements; a political end
to the realization of which to direct our civic enterprise. The idea of a universal
association of states plays, in the permissive theory of territorial rights, a
regulative function, it supports members of that political association in devel-
oping emancipatory political projects and it directs their efforts to a universally
encompassing ideal of rightful relations. The duty to reform institutions so as to
make more progress in the direction of a rightful political association of states
should be interpreted as a civic and historical duty: its content is not dictated by
a philosopher’s invective but ought to be collectively framed.
IX.
Let me conclude this discussion by considering how the permissive theory of

territorial rights addresses the three questions I raised at the beginning of this
article the right to settle, to exclude and to settle and exclude with regard to a
specific territory. The right to settle is explained through agents’ occupation of
some area of geographical space and their joint creation of a collective political
authority that adjudicates claims compatibly with principles of equal freedom,
within a given territory. To the extent to which this use of the territory
necessarily affects outsiders and entails a unilateral infringement of their
freedom, the right to exclude is permitted only if coupled with the attempt to
establish rightful political relations between states. Consequently outsiders
cannot be denied a right to enter, but neither can they be granted a permanent

right to settle. This condition also helps to explain why even though acquisition
of a particular territory is a result of historical and political contingencies that can
only be retroactively justified, this contingency does not authorize us to modify
the present partition of boundaries. It simply compels us to invest political
efforts in creating a kind of political association in which territorial claims can
be subject to global, public arbitration.
The permissive theory of territorial rights acknowledges the contingency of
boundaries and ascribes territorial rights to states only provisionally and con-
ditionally. However we ought to be cautious about jumping into conclusions
about how these conditions ought to be enforced. If we take seriously the
permissive theory laid out above, states’ present enjoyment of rights over their
territory is intrinsically bound to their taking up a series of political obligations
towards both their citizens and outsiders. A state’s domestic jurisdiction cannot
be assessed regardless of how it acts in the international sphere; it is intrinsically
related to it. The permissive theory of territorial rights makes us, as citizens,
aware of both the historical contingency of territory and of its political necessity.
While rendering permissible the maintenance of an order which appears, as
such, intrinsically hard to justify, it compels us to invest political efforts in rising
above its unilaterality.21
Lea Ypi
Department of Government
London School of Economics and Political Science
UK
l.l.ypi@lse.ac.uk
NOTES
1
One exception is Stilz 2009 whose use of Kant is more in line with legitimacy-based
accounts than with the permissive theory developed in this article see also Stilz 2011.
2
There is a discussion in the Kantian literature on whether the best translation for
Erlaubnisgesetz is permissive ‘principle’ or ‘law’. Kant’s use of the Latin lex, indicates that
the term ‘law’ might be appropriate. Here I shall ignore that controversy and follow Mary
Gregor in using both ‘principle’ and ‘law’ as they appear in the relevant translations.
References in the text are to the volume and page numbers of the German Academy
edition, followed by page numbers of the Cambridge edition of the works of Kant,
especially Kant 1996.
3
A pioneering analysis of Kant’s Erlaubnisgesetz showing its relevance for the entire
Doctrine of Right can be found in Brandt 1982. For an account of Kant’s development of
the concept, also in the context of other historical analyses of permissive principles, see
Tierney 2001a; 2001b. For a rigorous discussion of the systematic role of permissive
principles in Kant’s Doctrine of Right see Flikschuh 2000. In this article I follow authors
such as Brandt and Flikschuh who take Kant’s definitions of permissive laws that appear
in the Doctrine of Right and in Perpetual Peace to be consistent. For an argument that they
are not see Hruschka 2004.
4
I have discussed this issue in Ypi 2008.

310 Lea Ypi
5
The issue is, however, contested. Some argue that if the term really derived from
‘terra’, the Latin derivation should read ‘terratorium’, not ‘territorum’. An alternative
explanation claims that the word might in fact derive from ‘terrere’, that is to frighten, to
terrorize, which in turn implies that ‘territory’ is ‘a place from which people are
frightened off, or warned’. Interestingly enough, here the etymology of territory would
come closer to the etymology of ‘terrorism’. For more on this issue see Delaney 2005: 14
and Baldwin 1992: 209–10.
6
For some authors the relationship of the geographical territory to the state is
somewhat similar to the relationship of a property-owner with the territory that is in his
property (e.g., Simmons 2001; Steiner 1996). Others insist that while property rights relate
to the ability of agents to control (use, exchange, transfer, etc.) the resources in their
power, states’ territorial rights include also rights to jurisdiction (i.e. rights to create and
enforce legal rules within that specific territory) and meta-jurisdictional authority (i.e.,
capacity to modify the boundaries of jurisdictions). For discussions see Brilmayer 1989;
Buchanan 2003: 232–61; Nine 2008 and Stilz 2009. It is worth noticing how all these
authors agree that, to some extent, the claims of public authorities to jurisdiction over the
territory share some problems with the claims of individual property-owners, in particu-
lar as regards exclusive use of resources and control of outsiders. Although Kant also
refers to the sovereign as a ‘supreme proprietor (dominus territorii)’ (6: 324; 466), he
clarifies that the sovereign has no land of its own and that the idea of supreme
proprietorship is equivalent to that of a civil union that assigns to each what is his,
consistently with principles of right. It is, therefore, possible to illustrate some of the
problems with existing theories of territorial rights without placing too much emphasis
on the analogy between the state and an individual property owner and simply focusing
on the conditions under which a collective political body can exercise territorial jurisdic-
tion compatibly with principles of equal freedom.
7
For a similar characterization see also Simmons 2001 and Miller forthcoming.
8
For an argument that links territorial rights to common ownership see Risse
2009.
9
For developments of the individualist version see Steiner 1996 and Simmons 2001,
for collectivist interpretations see Meisels 2005 and Nine 2008.
10
See http://www.oed.com/view/Entry/176872?redirectedFrom=settlement#eid
11
I say more on this point in Section VII.
12
For a critique of the argument by ‘analogy’ see also Flikschuh 2010.
13
Of course, in the case of future generations, participation in democratic political
decision-making might compensate for the arbitrariness of previous decisions applying to
them; the same however could not be said with regard to outsiders.
14
This is exactly how Arthur Ripstein puts it, by arguing that in the case of states
there is neither a problem of unilateral choice in the establishment of the ‘mine and thine’
nor one of mutual assurance in the use of force, but only one of indeterminacy in the
interpretation of the right to self-defence (Ripstein 2009: 227–8).
15
Or, as Kant would have put it, they have been brought there ‘by nature or chance’.
For a discussion of the implications of this point see Waldron 2002.
16
This argument is very clear: ‘in the permissive law here, the prohibition presup-
posed is directed only to the future way of acquiring a rights (e.g., by inheritance)
whereas the exemption from this prohibition, i.e., the permission is directed to the present
status of possession, which in the transition from the state of nature to the civil condition
can continue as possession that, though not in conformity with rights, is still possession
in good faith’.

17
As Kant puts it, ‘this authorization to continue in possession, would not occur if
such an alleged acquisition were to take place in the civil condition; for then as soon as
its nonconformity with rights were discovered it would have to cease, as a wrong’ (8: 348;
321).
18
And of course some institutions might be better than others from the point of view
of fully realizing the principles of right. As already emphasized, the purpose of this article
is primarily to illustrate the logic of permissive principles, not to go into detailed
discussions on different institutional arrangements.
19
For a study of the relationship between the Lockean theory of acquisition and
colonialism see Arneil 1996. For a discussion of Kant’s cosmopolitanism in relationship to
colonialism see Niesen 2007.
20
Consider, for example, Kant’s remarks on the analogy between foreign invasion and
revolution: ‘the attempt to realize this idea should not be made by revolution, by a leap,
that is, by violent overthrow of an already existing defective constitution (for there would
be an intervening moment in which any rightful condition would be annihilated)’ (6: 355;
492).
21
Earlier versions of this article were presented at the University of Warwick, Political
Theory Seminar, at the University of Frankfurt, Cluster of Excellence on ‘The Formation
of Normative Orders’, at the American Political Science Association Meeting, at the
Wissenschaftskolleg Berlin, at the ‘Karl Popper’ research seminar of the LSE Philosophy
department and at the Centre for the Study of Social Justice, University of Oxford. I am
grateful to participants at these events as well as to Arash Abizadeh, Oliviero Angeli,
Chris Armstrong, Bob Goodin, Peter Niesen, Avia Pasternak, Adina Preda, Andrew
Rehfeld, Annie Stilz, Ines Valdez, Laura Valentini, Jonathan White and two anonymous
reviewers of the European Journal of Philosophy for their particularly helpful written
comments.
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A Permissive Theory of Territorial Rights

Territory is contested. It is both contested from the inside, when secessionist

To understand what is at the heart of the permissive theory of territorial

© 2012 John Wiley & Sons Ltd.

is promoted. It may be possible however, that if the meeting succeeded in

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

something is available for use is significantly different from saying that it is

© 2012 John Wiley & Sons Ltd.

We wandered around different villages; we stayed one week here and

© 2012 John Wiley & Sons Ltd.

Or consider how another Palestinian child, a third-generation refugee, summa-

Football is my favourite game; we play in the street of our camp because

© 2012 John Wiley & Sons Ltd.

Finally, given Kant’s emphasis on first occupancy as a subjective criterion for

© 2012 John Wiley & Sons Ltd.

If one of the conditions justifying settlement is communal use of the earth,

We emphasized that settlement through prior occupation is too weak a criterion

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

specific obligations both those excluded in space (e.g., non-members of that

It may be worth tackling this question by comparing the permissive theory of

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

is how groups end up occupying specific areas of geographical space. Acqui-

© 2012 John Wiley & Sons Ltd.

individual claims are subjected to a domestic general will. Permissive princi-

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

The partition of boundaries is therefore not beyond critique. Permissive

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

Let me conclude this discussion by considering how the permissive theory of

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

© 2012 John Wiley & Sons Ltd.

Chatty, D. and Hundt, G. L. (2005), Children of Palestine: Experiencing Forced Migration in

© 2012 John Wiley & Sons Ltd.

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